WHAT KIND OF CONSERVATISM WILL WIN?

The legal battle over health care reform is often portrayed as a battle between liberals and conservatives. It is that, but the most telling conflict is more likely to be between two different views of what it means to be a conservative judge. How one justice answers that question likely will decide the case.

Old-school judicial conservatism was about democracy. Judges such as Robert Bork argued that unelected judges should not overturn the will of the people, expressed through laws passed by democratically elected representatives, unless the text of the Constitution absolutely required that a law be struck down. Laurence Silberman, one of the lower court judges to rule on the case, shared this view. He held that the reforms are constitutional.

New-style judicial conservatism is about rights. Like liberal activists in the 1960s and 1970s, new-style conservative lawyers and judges think people have rights against the government and that judges should enforce those rights robustly. New judicial conservatives focus more on liberty and property than on equality, but they have no problem with judges striking down the laws that get hashed out in the political process.

Most Supreme Court watchers agree that Justice Anthony Kennedy is the swing vote in this case, as in many other cases, including abortion, gay rights and school desegregation. These court watchers are wrong in this case. Justice Kennedy is not devoted to judicial restraint. He consistently has advocated for the court to police the Constitution’s boundaries on federal power to keep that power in check. He has voted to rein in expansive court interpretations of Congress’ “commerce” power and Congress’ power to enforce the 14th Amendment. He has voted to more narrowly define Congress’ power to make laws that are “necessary and proper for carrying” out its enumerated powers. He has voted to interpret the constitutional power of the states as independent sovereigns to resist potential federal limitations on their power.

Chief Justice Roberts (and perhaps Justice Alito) are the only conservative members of the court who subscribe to this older conservatism. If the Affordable Health Care Act is upheld, Chief Justice Roberts is likely to provide the fifth vote. With the exception of affirmative action or other policies that take race into account, the chief justice does not seem to be champing at the bit to overrule federal law. He does not seem to want conservative judges running the government any more than he wants liberal judges doing so. He understands the court can only do so much, and there are many things it cannot do very well. Cobbling together messy but workable compromises such as health care reform is one of those things.

Instead, Chief Justice Roberts worries about excesses of Supreme Court power at least as much as he worries about excesses of federal power. He made this clear in his confirmation hearings when he compared judges to umpires. Umpires “make sure everybody plays by the rules,” he said. Judges, however, have a limited role. “Nobody ever went to a ballgame to see the umpire.” Judges “operate within a system of precedent.”